Democracy In America, Volume 1 by Alexis de Toqueville

Its easy to link to paragraphs in the Full Text ArchiveIf this page contains some material that you want to link to but you don't want your visitors to have to scroll down the whole page just hover your mouse over the relevent paragraph and click the bookmark icon that appears to the left of it. The address of that paragraph will appear in the address bar of your browser. For further details about how you can link to the Full Text Archive please refer to our linking page.

33,000 inhabitants. The last Act, which was passed in 1832,fixes the proportion at one for 48,000. The populationrepresented is composed of all the free men and of three-fifthsof the slaves.

[The last Act of apportionment, passed February 2, 1872,fixes the representation at one to 134,684 inhabitants. Thereare now (1875) 283 members of the lower House of Congress, and 9for the States at large, making in all 292 members. The oldStates have of course lost the representatives which the newStates have gained. - Translator's Note.]]

These facts show how rare and how difficult it is rationallyand logically to combine all the several parts of legislation. In the course of time different interests arise, and differentprinciples are sanctioned by the same people; and when a generalconstitution is to be established, these interests and principlesare so many natural obstacles to the rigorous application of anypolitical system, with all its consequences. The early stages ofnational existence are the only periods at which it is possibleto maintain the complete logic of legislation; and when weperceive a nation in the enjoyment of this advantage, before wehasten to conclude that it is wise, we should do well to rememberthat it is young. When the Federal Constitution was formed, theinterests of independence for the separate States, and theinterest of union for the whole people, were the only twoconflicting interests which existed amongst the Anglo-Americans,and a compromise was necessarily made between them.

It is, however, just to acknowledge that this part of theConstitution has not hitherto produced those evils which mighthave been feared. All the States are young and contiguous; theircustoms, their ideas, and their exigencies are not dissimilar;and the differences which result from their size or inferioritydo not suffice to set their interests at variance. The smallStates have consequently never been induced to league themselvestogether in the Senate to oppose the designs of the larger ones;and indeed there is so irresistible an authority in thelegitimate expression of the will of a people that the Senatecould offer but a feeble opposition to the vote of the majorityof the House ofRepresentatives.

It must not be forgotten, on the other hand, that it was notin the power of the American legislators to reduce to a singlenation the people for whom they were making laws. The object ofthe Federal Constitution was not to destroy the independence ofthe States, but to restrain it. By acknowledging the realauthority of these secondary communities (and it was impossibleto deprive them of it), they disavowed beforehand the habitualuse of constraint in enforcing g the decisions of the majority.Upon this principle the introduction of the influence of theStates into the mechanism of the Federal Government was by nomeans to be wondered at, since it only attested the existence ofan acknowledged power, which was to be humored and not forciblychecked.

A Further Difference Between The Senate And The House OfRepresentatives

The Senate named by the provincial legislators, theRepresentatives by the people - Double election of the former;single election of the latter - Term of the different offices -Peculiar functions of each House.

The Senate not only differs from the other House in theprinciple which it represents, but also in the mode of itselection, in the term for which it is chosen, and in the natureof its functions. The House of Representatives is named by thepeople, the Senate by the legislators of each State; the formeris directly elected, the latter is elected by an elected body;the term for which the representatives are chosen is only twoyears, that of the senators is six. The functions of the Houseof Representatives are purely legislative, and the only share ittakes in the judicial power is in the impeachment of publicofficers. The Senate co-operates in the work of legislation, andtries those political offences which the House of Representativessubmits to its decision. It also acts as the great executivecouncil of the nation; the treaties which are concluded by thePresident must be ratified by the Senate, and the appointments hemay make must be definitely approved by the same body. *o

[Footnote o: See "The Federalist," Nos. 52-56, inclusive; Story,pp. 199-314; Constitution of the United States, sects. 2 and 3.] The Executive Power *p

Dependence of the President - He is elective and responsible - Heis free to act in his own sphere under the inspection, but notunder the direction, of the Senate - His salary fixed at hisentry into office - Suspensive veto.

The American legislators undertook a difficult task inattempting to create an executive power dependent on the majorityof the people, and nevertheless sufficiently strong to actwithout restraint in its own sphere. It was indispensable to themaintenance of the republican form of government that therepresentative of the executive power should be subject to thewill of the nation.

The President is an elective magistrate. His honor, hisproperty, his liberty, and his life are the securities which thepeople has for the temperate use of his power. But in theexercise of his authority he cannot be said to be perfectlyindependent; the Senate takes cognizance of his relations withforeign powers, and of the distribution of public appointments,so that he can neither be bribed nor can he employ the means ofcorruption. The legislators of the Union acknowledged that theexecutive power would be incompetent to fulfil its task withdignity and utility, unless it enjoyed a greater degree ofstability and of strength than had been granted to it in theseparate States.

The President is chosen for four years, and he may bereelected; so that the chances of a prolonged administration mayinspire him with hopeful undertakings for the public good, andwith the means of carrying them into execution. The Presidentwas made the sole representative of the executive power of theUnion, and care was taken not to render his decisions subordinateto the vote of a council - a dangerous measure, which tends atthe same time to clog the action of the Government and todiminish its responsibility. The Senate has the right ofannulling g certain acts of the President; but it cannot compelhim to take any steps, nor does it participate in the exercise ofthe executive power.

The action of the legislature on the executive power may bedirect; and we have just shown that the Americans carefullyobviated this influence; but it may, on the other hand, beindirect. Public assemblies which have the power of depriving anofficer of state of his salary encroach upon his independence;and as they are free to make the laws, it is to be feared lestthey should gradually appropriate to themselves a portion of thatauthority which the Constitution had vested in his hands. Thisdependence of the executive power is one of the defects inherentin republican constitutions. The Americans have not been able tocounteract the tendency which legislative assemblies have to getpossession of the government, but they have rendered thispropensity less irresistible. The salary of the President isfixed, at the time of his entering upon office, for the wholeperiod of his magistracy. The President is, moreover, providedwith a suspensive veto, which allows him to oppose the passing ofsuch laws as might destroy the portion of independence which theConstitution awards him. The struggle between the President andthe legislature must always be an unequal one, since the latteris certain of bearing down all resistance by persevering in itsplans; but the suspensive veto forces it at least to reconsiderthe matter, and, if the motion be persisted in, it must then bebacked by a majority of two-thirds of the whole house. The vetois, in fact, a sort of appeal to the people. The executive power,which, without this security, might have been secretly oppressed,adopts this means of pleading its cause and stating its motives.But if the legislature is certain of overpowering all resistanceby persevering in its plans, I reply, that in the constitutionsof all nations, of whatever kind they may be, a certain pointexists at which the legislator is obliged to have recourse to thegood sense and the virtue of his fellow-citizens. This point ismore prominent and more discoverable in republics, whilst it ismore remote and more carefully concealed in monarchies, but italways exists somewhere. There is no country in the world inwhich everything can be provided for by the laws, or in whichpolitical institutions can prove a substitute for common senseand public morality.

Differences Between The Position Of The President Of The UnitedStates And That Of A Constitutional King Of France

Executive power in the Northern States as limited and as partialas the supremacy which it represents - Executive power in Franceas universal as the supremacy it represents - The King a branchof the legislature - The President the mere executor of the law -Other differences resulting from the duration of the two powers -The President checked in the exercise of the executive authority- The King independent in its exercise - Notwithstanding thesediscrepancies France is more akin to a republic than the Union toa monarchy -Comparison of the number of public officers dependingupon the executive power in the two countries.

The executive power has so important an influence on thedestinies of nations that I am inclined to pause for an instantat this portion of my subject, in order more clearly to explainthe part it sustains in America. In order to form an accurateidea of the position of the President of the United States, itmay not be irrelevant to compare it to that of one of theconstitutional kings of Europe. In this comparison I shall paybut little attention to the external signs of power, which aremore apt to deceive the eye of the observer than to guide hisresearches. When a monarchy is being gradually transformed into arepublic, the executive power retains the titles, the honors, theetiquette, and even the funds of royalty long after its authorityhas disappeared. The English, after having cut off the head ofone king and expelled another from his throne, were accustomed toaccost the successor of those princes upon their knees. On theother hand, when a republic falls under the sway of a singleindividual, the demeanor of the sovereign is simple andunpretending, as if his authority was not yet paramount. Whenthe emperors exercised an unlimited control over the fortunes andthe lives of their fellow-citizens, it was customary to call themCaesar in conversation, and they were in the habit of suppingwithout formality at their friends' houses. It is thereforenecessary to look below the surface.

The sovereignty of the United States is shared between theUnion and the States, whilst in France it is undivided andcompact: hence arises the first and the most notable differencewhich exists between the President of the United States and theKing of France. In the United States the executive power is aslimited and partial as the sovereignty of the Union in whose nameit acts; in France it is as universal as the authority of theState. The Americans have a federal and the French a nationalGovernment.

Chapter VIII: The Federal Constitution - Part II

This cause of inferiority results from the nature of things,but it is not the only one; the second in importance is asfollows: Sovereignty may be defined to be the right of makinglaws: in France, the King really exercises a portion of thesovereign power, since the laws have no weight till he has givenhis assent to them; he is, moreover, the executor of all theyordain. The President is also the executor of the laws, but hedoes not really co-operate in their formation, since the refusalof his assent does not annul them. He is therefore merely to beconsidered as the agent of the sovereign power. But not onlydoes the King of France exercise a portion of the sovereignpower, he also contributes to the nomination of the legislature,which exercises the other portion. He has the privilege ofappointing the members of one chamber, and of dissolving theother at his pleasure; whereas the President of the United Stateshas no share in the formation of the legislative body, and cannotdissolve any part of it. The King has the same right of bringingforward measures as the Chambers; a right which the Presidentdoes not possess. The King is represented in each assembly byhis ministers, who explain his intentions, support his opinions,and maintain the principles of the Government. The President andhis ministers are alike excluded from Congress; so that hisinfluence and his opinions can only penetrate indirectly intothat great body. The King of France is therefore on an equalfooting with the legislature, which can no more act without himthan he can without it. The President exercises an authorityinferior to, and depending upon, that of the legislature.

Even in the exercise of the executive power, properly socalled - the point upon which his position seems to be mostanalogous to that of the King of France - the President laborsunder several causes of inferiority. The authority of the King,in France, has, in the first place, the advantage of durationover that of the President, and durability is one of the chiefelements of strength; nothing is either loved or feared but whatis likely to endure. The President of the United States is amagistrate elected for four years; the King, in France, is anhereditary sovereign. In the exercise of the executive power thePresident of the United States is constantly subject to a jealousscrutiny. He may make, but he cannot conclude, a treaty; he maydesignate, but he cannot appoint, a public officer. *q The Kingof France is absolute within the limits of his authority. ThePresident of the United States is responsible for his actions;but the person of the King is declared inviolable by the FrenchCharter. *r

[Footnote q: The Constitution had left it doubtful whether thePresident was obliged to consult the Senate in the removal aswell as in the appointment of Federal officers. "The Federalist"(No. 77) seemed to establish the affirmative; but in 1789Congress formally decided that, as the President was responsiblefor his actions, he ought not to be forced to employ agents whohad forfeited his esteem. See Kent's "Commentaries, vol. i. p.289.]

[Footnote r: [This comparison applied to the Constitutional Kingof France and to the powers he held under the Charter of 1830,till the overthrow of the monarchy in 1848. - Translator'sNote.]]

Nevertheless, the supremacy of public opinion is no lessabove the head of the one than of the other. This power is lessdefinite, less evident, and less sanctioned by the laws in Francethan in America, but in fact it exists. In America, it acts byelections and decrees; in France it proceeds by revolutions; butnotwithstanding the different constitutions of these twocountries, public opinion is the predominant authority in both ofthem. The fundamental principle of legislation - a principleessentially republican - is the same in both countries, althoughits consequences may be different, and its results more or lessextensive. Whence I am led to conclude that France with its Kingis nearer akin to a republic than the Union with its President isto a monarchy.

In what I have been saying I have only touched upon the mainpoints of distinction; and if I could have entered into details,the contrast would have been rendered still more striking. I have remarked that the authority of the President in theUnited States is only exercised within the limits of a partialsovereignty, whilst that of the King in France is undivided. Imight have gone on to show that the power of the King'sgovernment in France exceeds its natural limits, howeverextensive they may be, and penetrates in a thousand differentways into the administration of private interests. Amongst theexamples of this influence may be quoted that which results fromthe great number of public functionaries, who all derive theirappointments from the Government. This number now exceeds allprevious limits; it amounts to 138,000 *s nominations, each ofwhich may be considered as an element of power. The President ofthe United States has not the exclusive right of making anypublic appointments, and their whole number scarcely exceeds12,000. *t

[Footnote s: The sums annually paid by the State to theseofficers amount to 200,000,000 fr. ($40,000,000).]

[Footnote t: This number is extracted from the "NationalCalendar" for 1833. The "National Calendar" is an Americanalmanac which contains the names of all the Federal officers. Itresults from this comparison that the King of France has eleventimes as many places at his disposal as the President, althoughthe population of France is not much more than double that of theUnion.

[I have not the means of ascertaining the number ofappointments now at the disposal of the President of the UnitedStates, but his patronage and the abuse of it have largelyincreased since 1833. - Translator's Note, 1875.]]

Accidental Causes Which May Increase The Influence Of TheExecutive Government

External security of the Union - Army of six thousand men - Fewships - The President has no opportunity of exercising his greatprerogatives - In the prerogatives he exercises he is weak.

If the executive government is feebler in America than inFrance, the cause is more attributable to the circumstances thanto the laws of the country.

It is chiefly in its foreign relations that the executivepower of a nation is called upon to exert its skill and itsvigor. If the existence of the Union were perpetuallythreatened, and if its chief interests were in daily connectionwith those of other powerful nations, the executive governmentwould assume an increased importance in proportion to themeasures expected of it, and those which it would carry intoeffect. The President of the United States is thecommander-in-chief of the army, but of an army composed of onlysix thousand men; he commands the fleet, but the fleet reckonsbut few sail; he conducts the foreign relations of the Union, butthe United States are a nation without neighbors. Separated fromthe rest of the world by the ocean, and too weak as yet to aim atthe dominion of the seas, they have no enemies, and theirinterests rarely come into contact with those of any other nationof the globe.

The practical part of a Government must not be judged by thetheory of its constitution. The President of the United Statesis in the possession of almost royal prerogatives, which he hasno opportunity of exercising; and those privileges which he canat present use are very circumscribed. The laws allow him topossess a degree of influence which circumstances do not permithim to employ.

On the other hand, the great strength of the royalprerogative in France arises from circumstances far more thanfrom the laws. There the executive government is constantlystruggling against prodigious obstacles, and exerting all itsenergies to repress them; so that it increases by the extent ofits achievements, and by the importance of the events itcontrols, without modifying its constitution. If the laws hadmade it as feeble and as circumscribed as it is in the Union, itsinfluence would very soon become still more preponderant.

Why The President Of The United States Does Not Require TheMajority Of The Two Houses In Order To Carry On The Government It is an established axiom in Europe that a constitutionalKing cannot persevere in a system of government which is opposedby the two other branches of the legislature. But severalPresidents of the United States have been known to lose themajority in the legislative body without being obliged to abandonthe supreme power, and without inflicting a serious evil uponsociety. I have heard this fact quoted as an instance of theindependence and the power of the executive government inAmerica: a moment's reflection will convince us, on the contrary,that it is a proof of its extreme weakness.

A King in Europe requires the support of the legislature toenable him to perform the duties imposed upon him by theConstitution, because those duties are enormous. Aconstitutional King in Europe is not merely the executor of thelaw, but the execution of its provisions devolves so completelyupon him that he has the power of paralyzing its influence if itopposes his designs. He requires the assistance of thelegislative assemblies to make the law, but those assembliesstand in need of his aid to execute it: these two authoritiescannot subsist without each other, and the mechanism ofgovernment is stopped as soon as they are at variance.

In America the President cannot prevent any law from beingpassed, nor can he evade the obligation of enforcing it. Hissincere and zealous co-operation is no doubt useful, but it isnot indispensable, in the carrying on of public affairs. All hisimportant acts are directly or indirectly submitted to thelegislature, and of his own free authority he can do but little. It is therefore his weakness, and not his power, which enableshim to remain in opposition to Congress. In Europe, harmony mustreign between the Crown and the other branches of thelegislature, because a collision between them may prove serious;in America, this harmony is not indispensable, because such acollision is impossible.

Election Of The President

Dangers of the elective system increase in proportion to theextent of the prerogative - This system possible in Americabecause no powerful executive authority is required - Whatcircumstances are favorable to the elective system - Why theelection of the President does not cause a deviation from theprinciples of the Government - Influence of the election of thePresident on secondary functionaries.

The dangers of the system of election applied to the head ofthe executive government of a great people have been sufficientlyexemplified by experience and by history, and the remarks I amabout to make refer to America alone. These dangers may be moreor less formidable in proportion to the place which the executivepower occupies, and to the importance it possesses in the State;and they may vary according to the mode of election and thecircumstances in which the electors are placed. The most weightyargument against the election of a chief magistrate is, that itoffers so splendid a lure to private ambition, and is so apt toinflame men in the pursuit of power, that when legitimate meansare wanting force may not unfrequently seize what right denied.

It is clear that the greater the privileges of the executiveauthority are, the greater is the temptation; the more theambition of the candidates is excited, the more warmly are theirinterests espoused by a throng of partisans who hope to share thepower when their patron has won the prize. The dangers of theelective system increase, therefore, in the exact ratio of theinfluence exercised by the executive power in the affairs ofState. The revolutions of Poland were not solely attributable tothe elective system in general, but to the fact that the electedmonarch was the sovereign of a powerful kingdom. Before we candiscuss the absolute advantages of the elective system we mustmake preliminary inquiries as to whether the geographicalposition, the laws, the habits, the manners, and the opinions ofthe people amongst whom it is to be introduced will admit of theestablishment of a weak and dependent executive government; forto attempt to render the representative of the State a powerfulsovereign, and at the same time elective, is, in my opinion, toentertain two incompatible designs. To reduce hereditary royaltyto the condition of an elective authority, the only means that Iam acquainted with are to circumscribe its sphere of actionbeforehand, gradually to diminish its prerogatives, and toaccustom the people to live without its protection. Nothing,however, is further from the designs of the republicans of Europethan this course: as many of them owe their hatred of tyranny tothe sufferings which they have personally undergone, it isoppression, and not the extent of the executive power, whichexcites their hostility, and they attack the former withoutperceiving how nearly it is connected with the latter.

Hitherto no citizen has shown any disposition to expose hishonor and his life in order to become the President of the UnitedStates; because the power of that office is temporary, limited,and subordinate. The prize of fortune must be great to encourageadventurers in so desperate a game. No candidate has as yet beenable to arouse the dangerous enthusiasm or the passionatesympathies of the people in his favor, for the very simple reasonthat when he is at the head of the Government he has but littlepower, but little wealth, and but little glory to share amongsthis friends; and his influence in the State is too small for thesuccess or the ruin of a faction to depend upon the elevation ofan individual to power.

The great advantage of hereditary monarchies is, that as theprivate interest of a family is always intimately connected withthe interests of the State, the executive government is neversuspended for a single instant; and if the affairs of a monarchyare not better conducted than those of a republic, at least thereis always some one to conduct them, well or ill, according to hiscapacity. In elective States, on the contrary, the wheels ofgovernment cease to act, as it were, of their own accord at theapproach of an election, and even for some time previous to thatevent. The laws may indeed accelerate the operation of theelection, which may be conducted with such simplicity andrapidity that the seat of power will never be left vacant; but,notwithstanding these precautions, a break necessarily occurs inthe minds of the people.

At the approach of an election the head of the executivegovernment is wholly occupied by the coming struggle; his futureplans are doubtful; he can undertake nothing new, and the he willonly prosecute with indifference those designs which another willperhaps terminate. "I am so near the time of my retirement fromoffice," said President Jefferson on the 21st of January, 1809(six weeks before the election), "that I feel no passion, I takeno part, I express no sentiment. It appears to me just to leaveto my successor the commencement of those measures which he willhave to prosecute, and for which he will be responsible."

On the other hand, the eyes of the nation are centred on asingle point; all are watching the gradual birth of so importantan event. The wider the influence of the executive powerextends, the greater and the more necessary is its constantaction, the more fatal is the term of suspense; and a nationwhich is accustomed to the government, or, still more, one usedto the administrative protection of a powerful executiveauthority would be infallibly convulsed by an election of thiskind. In the United States the action of the Government may beslackened with impunity, because it is always weak andcircumscribed. *u

[Footnote u: [This, however, may be a great danger. The periodduring which Mr. Buchanan retained office, after the election ofMr. Lincoln, from November, 1860, to March, 1861, was that whichenabled the seceding States of the South to complete theirpreparations for the Civil War, and the Executive Government wasparalyzed. No greater evil could befall a nation. -Translator'sNote.]]

One of the principal vices of the elective system is that italways introduces a certain degree of instability into theinternal and external policy of the State. But this disadvantageis less sensibly felt if the share of power vested in the electedmagistrate is small. In Rome the principles of the Governmentunderwent no variation, although the Consuls were changed everyyear, because the Senate, which was an hereditary assembly,possessed the directing authority. If the elective system wereadopted in Europe, the condition of most of the monarchicalStates would be changed at every new election. In America thePresident exercises a certain influence on State affairs, but hedoes not conduct them; the preponderating power is vested in therepresentatives of the whole nation. The political maxims of thecountry depend therefore on the mass of the people, not on thePresident alone; and consequently in America the elective systemhas no very prejudicial influence on the fixed principles of theGovernment. But the want of fixed principles is an evil soinherent in the elective system that it is still extremelyperceptible in the narrow sphere to which the authority of thePresident extends.

The Americans have admitted that the head of the executivepower, who has to bear the whole responsibility of the duties heis called upon to fulfil, ought to be empowered to choose his ownagents, and to remove them at pleasure: the legislative bodieswatch the conduct of the President more than they direct it. Theconsequence of this arrangement is, that at every new electionthe fate of all the Federal public officers is in suspense. Mr.Quincy Adams, on his entry into office, discharged the majorityof the individuals who had been appointed by his predecessor: andI am not aware that General Jackson allowed a single removablefunctionary employed in the Federal service to retain his placebeyond the first year which succeeded his election. It issometimes made a subject of complaint that in the constitutionalmonarchies of Europe the fate of the humbler servants of anAdministration depends upon that of the Ministers. But inelective Governments this evil is far greater. In aconstitutional monarchy successive ministries are rapidly formed;but as the principal representative of the executive power doesnot change, the spirit of innovation is kept within bounds; thechanges which take place are in the details rather than in theprinciples of the administrative system; but to substitute onesystem for another, as is done in America every four years, bylaw, is to cause a sort of revolution. As to the misfortuneswhich may fall upon individuals in consequence of this state ofthings, it must be allowed that the uncertain situation of thepublic officers is less fraught with evil consequences in Americathan elsewhere. It is so easy to acquire an independent positionin the United States that the public officer who loses his placemay be deprived of the comforts of life, but not of the means ofsubsistence.

I remarked at the beginning of this chapter that the dangersof the elective system applied to the head of the State areaugmented or decreased by the peculiar circumstances of thepeople which adopts it. However the functions of the executivepower may be restricted, it must always exercise a greatinfluence upon the foreign policy of the country, for anegotiation cannot be opened or successfully carried on otherwisethan by a single agent. The more precarious and the more perilousthe position of a people becomes, the more absolute is the wantof a fixed and consistent external policy, and the more dangerousdoes the elective system of the Chief Magistrate become. Thepolicy of the Americans in relation to the whole world isexceedingly simple; for it may almost be said that no countrystands in need of them, nor do they require the co-operation ofany other people. Their independence is never threatened. Intheir present condition, therefore, the functions of theexecutive power are no less limited by circumstances than by thelaws; and the President may frequently change his line of policywithout involving the State in difficulty or destruction.

Whatever the prerogatives of the executive power may be, theperiod which immediately precedes an election and the moment ofits duration must always be considered as a national crisis,which is perilous in proportion to the internal embarrassmentsand the external dangers of the country. Few of the nations ofEurope could escape the calamities of anarchy or of conquestevery time they might have to elect a new sovereign. In Americasociety is so constituted that it can stand without assistanceupon its own basis; nothing is to be feared from the pressure ofexternal dangers, and the election of the President is a cause ofagitation, but not of ruin.

Mode Of Election

Skill of the American legislators shown in the mode of electionadopted by them - Creation of a special electoral body - Separatevotes of these electors - Case in which the House ofRepresentatives is called upon to choose the President - Resultsof the twelve elections which have taken place since theConstitution has been established.

Besides the dangers which are inherent in the system, manyother difficulties may arise from the mode of election, which maybe obviated by the precaution of the legislator. When a peoplemet in arms on some public spot to choose its head, it wasexposed to all the chances of civil war resulting from so martiala mode of proceeding, besides the dangers of the elective systemin itself. The Polish laws, which subjected the election of thesovereign to the veto of a single individual, suggested themurder of that individual or prepared the way to anarchy.

In the examination of the institutions and the political aswell as social condition of the United States, we are struck bythe admirable harmony of the gifts of fortune and the efforts ofman. The nation possessed two of the main causes of internalpeace; it was a new country, but it was inhabited by a peoplegrown old in the exercise of freedom. America had no hostileneighbors to dread; and the American legislators, profiting bythese favorable circumstances, created a weak and subordinateexecutive power which could without danger be made elective.

It then only remained for them to choose the least dangerousof the various modes of election; and the rules which they laiddown upon this point admirably correspond to the securities whichthe physical and political constitution of the country alreadyafforded. Their object was to find the mode of election whichwould best express the choice of the people with the leastpossible excitement and suspense. It was admitted in the firstplace that the simple majority should be decisive; but thedifficulty was to obtain this majority without an interval ofdelay which it was most important to avoid. It rarely happensthat an individual can at once collect the majority of thesuffrages of a great people; and this difficulty is enhanced in arepublic of confederate States, where local influences are apt topreponderate. The means by which it was proposed to obviate thissecond obstacle was to delegate the electoral powers of thenation to a body of representatives. This mode of electionrendered a majority more probable; for the fewer the electorsare, the greater is the chance of their coming to a finaldecision. It also offered an additional probability of ajudicious choice. It then remained to be decided whether thisright of election was to be entrusted to a legislative body, thehabitual representative assembly of the nation, or whether anelectoral assembly should be formed for the express purpose ofproceeding to the nomination of a President. The Americans chosethe latter alternative, from a belief that the individuals whowere returned to make the laws were incompetent to represent thewishes of the nation in the election of its chief magistrate; andthat, as they are chosen for more than a year, the constituencythey represent might have changed its opinion in that time. Itwas thought that if the legislature was empowered to elect thehead of the executive power, its members would, for some timebefore the election, be exposed to the manoeuvres of corruptionand the tricks of intrigue; whereas the special electors would,like a jury, remain mixed up with the crowd till the day ofaction, when they would appear for the sole purpose of givingtheir votes.

It was therefore established that every State should name acertain number of electors, *v who in their turn should elect thePresident; and as it had been observed that the assemblies towhich the choice of a chief magistrate had been entrusted inelective countries inevitably became the centres of passion andof cabal; that they sometimes usurped an authority which did notbelong to them; and that their proceedings, or the uncertaintywhich resulted from them, were sometimes prolonged so much as toendanger the welfare of the State, it was determined that theelectors should all vote upon the same day, without beingconvoked to the same place. *w This double election rendered amajority probable, though not certain; for it was possible thatas many differences might exist between the electors as betweentheir constituents. In this case it was necessary to haverecourse to one of three measures; either to appoint newelectors, or to consult a second time those already appointed,orto defer the election to another authority. The first two ofthese alternatives, independently of the uncertainty of theirresults, were likely to delay the final decision, and toperpetuate an agitation which must always be accompanied withdanger. The third expedient was therefore adopted, and it wasagreed that the votes should be transmitted sealed to thePresident of the Senate, and that they should be opened andcounted in the presence of the Senate and the House ofRepresentatives. If none of the candidates has a majority, theHouse of Representatives then proceeds immediately to elect aPresident, but with the condition that it must fix upon one ofthe three candidates who have the highest numbers. *x

[Footnote v: As many as it sends members to Congress. The numberof electors at the election of 1833 was 288. (See "The NationalCalendar," 1833.)]

[Footnote w: The electors of the same State assemble, but theytransmit to the central government the list of their individualvotes, and not the mere result of the vote of the majority.] [Footnote x: In this case it is the majority of the States, andnot the majority of the members, which decides the question; sothat New York has not more influence in the debate than RhodeIsland. Thus the citizens of the Union are first consulted asmembers of one and the same community; and, if they cannot agree,recourse is had to the division of the States, each of which hasa separate and independent vote. This is one of thesingularities of the Federal Constitution which can only beexplained by the jar of conflicting interests.]

Thus it is only in case of an event which cannot oftenhappen, and which can never be foreseen, that the election isentrusted to the ordinary representatives of the nation; and eventhen they are obliged to choose a citizen who has already beendesignated by a powerful minority of the special electors. It isby this happy expedient that the respect which is due to thepopular voice is combined with the utmost celerity of executionand those precautions which the peace of the country demands. But the decision of the question by the House of Representativesdoes not necessarily offer an immediate solution of thedifficulty, for the majority of that assembly may still bedoubtful, and in this case the Constitution prescribes no remedy.Nevertheless, by restricting the number of candidates to three,and by referring the matter to the judgment of an enlightenedpublic body, it has smoothed all the obstacles *y which are notinherent in the elective system.

[Footnote y: Jefferson, in 1801, was not elected until thethirty- sixth time of balloting.]

In the forty-four years which have elapsed since thepromulgation of the Federal Constitution the United States havetwelve times chosen a President. Ten of these elections tookplace simultaneously by the votes of the special electors in thedifferent States. The House of Representatives has only twiceexercised its conditional privilege of deciding in cases ofuncertainty; the first time was at the election of Mr. Jeffersonin 1801; the second was in 1825, when Mr. Quincy Adams was named.*z

[Footnote z: [General Grant is now (1874) the eighteenthPresident of the United States.]]

Crises Of The Election

The Election may be considered as a national crisis - Why? -Passions of the people - Anxiety of the President - Calm whichsucceeds the agitation of the election.

I have shown what the circumstances are which favored theadoption of the elective system in the United States, and whatprecautions were taken by the legislators to obviate its dangers. The Americans are habitually accustomed to all kinds ofelections, and they know by experience the utmost degree ofexcitement which is compatible with security. The vast extent ofthe country and the dissemination of the inhabitants render acollision between parties less probable and less dangerous therethan elsewhere. The political circumstances under which theelections have hitherto been carried on have presented no realembarrassments to the nation.

Nevertheless, the epoch of the election of a President ofthe United States may be considered as a crisis in the affairs ofthe nation. The influence which he exercises on public businessis no doubt feeble and indirect; but the choice of the President,which is of small importance to each individual citizen, concernsthe citizens collectively; and however trifling an interest maybe, it assumes a great degree of importance as soon as it becomesgeneral. The President possesses but few means of rewarding hissupporters in comparison to the kings of Europe, but the placeswhich are at his disposal are sufficiently numerous to interest,directly or indirectly, several thousand electors in his success. Political parties in the United States are led to rally round anindividual, in order to acquire a more tangible shape in the eyesof the crowd, and the name of the candidate for the Presidency isput forward as the symbol and personification of their theories.For these reasons parties are strongly interested in gaining theelection, not so much with a view to the triumph of theirprinciples under the auspices of the President-elect as to showby the majority which returned him, the strength of thesupporters of those principles.

For a long while before the appointed time is at hand theelection becomes the most important and the all-engrossing topicof discussion. The ardor of faction is redoubled; and all theartificial passions which the imagination can create in the bosomof a happy and peaceful land are agitated and brought to light. The President, on the other hand, is absorbed by the cares ofself- defence. He no longer governs for the interest of theState, but for that of his re-election; he does homage to themajority, and instead of checking its passions, as his dutycommands him to do, he frequently courts its worst caprices. Asthe election draws near, the activity of intrigue and theagitation of the populace increase; the citizens are divided intohostile camps, each of which assumes the name of its favoritecandidate; the whole nation glows with feverish excitement; theelection is the daily theme of the public papers, the subject ofprivate conversation, the end of every thought and every action,the sole interest of the present. As soon as the choice isdetermined, this ardor is dispelled; and as a calmer seasonreturns, the current of the State, which had nearly broken itsbanks, sinks to its usual level: *a but who can refrain fromastonishment at the causes of the storm.

When the head of the executive power is re-eligible, it is theState which is the source of intrigue and corruption - The desireof being re-elected the chief aim of a President of the UnitedStates - Disadvantage of the system peculiar to America - Thenatural evil of democracy is that it subordinates all authorityto the slightest desires of the majority - The re-election of thePresident encourages this evil.

It may be asked whether the legislators of the United Statesdid right or wrong in allowing the re-election of the President. It seems at first sight contrary to all reason to prevent thehead of the executive power from being elected a second time. The influence which the talents and the character of a singleindividual may exercise upon the fate of a whole people, incritical circumstances or arduous times, is well known: a lawpreventing the re-election of the chief magistrate would deprivethe citizens of the surest pledge of the prosperity and thesecurity of the commonwealth; and, by a singular inconsistency, aman would be excluded from the government at the very time whenhe had shown his ability in conducting its affairs.

But if these arguments are strong, perhaps still morepowerful reasons may be advanced against them. Intrigue andcorruption are the natural defects of elective government; butwhen the head of the State can be re-elected these evils rise toa great height, and compromise the very existence of the country. When a simple candidate seeks to rise by intrigue, his manoeuvresmust necessarily be limited to a narrow sphere; but when thechief magistrate enters the lists, he borrows the strength of thegovernment for his own purposes. In the former case the feebleresources of an individual are in action; in the latter, theState itself, with all its immense influence, is busied in thework of corruption and cabal. The private citizen, who employsthe most immoral practices to acquire power, can only act in amanner indirectly prejudicial to the public prosperity. But ifthe representative of the executive descends into the combat, thecares of government dwindle into second-rate importance, and thesuccess of his election is his first concern. All laws and allthe negotiations he undertakes are to him nothing more thanelectioneering schemes; places become the reward of servicesrendered, not to the nation, but to its chief; and the influenceof the government, if not injurious to the country, is at leastno longer beneficial to the community for which it was created.

It is impossible to consider the ordinary course of affairsin the United States without perceiving that the desire of beingre- elected is the chief aim of the President; that his wholeadministration, and even his most indifferent measures, tend tothis object; and that, as the crisis approaches, his personalinterest takes the place of his interest in the public good. Theprinciple of re-eligibility renders the corrupt influence ofelective government still more extensive and pernicious.

In America it exercises a peculiarly fatal influence on thesources of national existence. Every government seems to beafflicted by some evil which is inherent in its nature, and thegenius of the legislator is shown in eluding its attacks. AState may survive the influence of a host of bad laws, and themischief they cause is frequently exaggerated; but a law whichencourages the growth of the canker within must prove fatal inthe end, although its bad consequences may not be immediatelyperceived.

The principle of destruction in absolute monarchies lies inthe excessive and unreasonable extension of the prerogative ofthe crown; and a measure tending to remove the constitutionalprovisions which counterbalance this influence would be radicallybad, even if its immediate consequences were unattended withevil. By a parity of reasoning, in countries governed by ademocracy, where the people is perpetually drawing all authorityto itself, the laws which increase or accelerate its action arethe direct assailants of the very principle of the government.

The greatest proof of the ability of the Americanlegislators is, that they clearly discerned this truth, and thatthey had the courage to act up to it. They conceived that acertain authority above the body of the people was necessary,which should enjoy a degree of independence, without, however,being entirely beyond the popular control; an authority whichwould be forced to comply with the permanent determinations ofthe majority, but which would be able to resist its caprices, andto refuse its most dangerous demands. To this end they centredthe whole executive power of the nation in a single arm; theygranted extensive prerogatives to the President, and they armedhim with the veto to resist the encroachments of the legislature.

But by introducing the principle of re-election they partlydestroyed their work; and they rendered the President but littleinclined to exert the great power they had vested in his hands. If ineligible a second time, the President would be far fromindependent of the people, for his responsibility would not belessened; but the favor of the people would not be so necessaryto him as to induce him to court it by humoring its desires. Ifre- eligible (and this is more especially true at the presentday, when political morality is relaxed, and when great men arerare), the President of the United States becomes an easy tool inthe hands of the majority. He adopts its likings and itsanimosities, he hastens to anticipate its wishes, he forestallsits complaints, he yields to its idlest cravings, and instead ofguiding it, as the legislature intended that he should do, he isever ready to follow its bidding. Thus, in order not to deprivethe State of the talents of an individual, those talents havebeen rendered almost useless; and to reserve an expedient forextraordinary perils, the country has been exposed to dailydangers.

Federal Courts *b

[Footnote b: See chap. VI, entitled "Judicial Power in theUnited States." This chapter explains the general principles ofthe American theory of judicial institutions. See also theFederal Constitution, Art. 3. See "The Federalists," Nos. 78-83, inclusive; and a work entitled "Constitutional Law," beinga view of the practice and jurisdiction of the courts of theUnited States, by Thomas Sergeant. See Story, pp. 134, 162, 489,511, 581, 668; and the organic law of September 24, 1789, in the"Collection of the Laws of the United States," by Story, vol. i.p. 53.]

Political importance of the judiciary in the United States -Difficulty of treating this subject - Utility of judicial powerin confederations - What tribunals could be introduced into theUnion - Necessity of establishing federal courts of justice -Organization of the national judiciary - The Supreme Court - Inwhat it differs from all known tribunals.

I have inquired into the legislative and executive power ofthe Union, and the judicial power now remains to be examined; butin this place I cannot conceal my fears from the reader. Theirjudicial institutions exercise a great influence on the conditionof the Anglo-Americans, and they occupy a prominent place amongstwhat are probably called political institutions: in this respectthey are peculiarly deserving of our attention. But I am at aloss to explain the political action of the American tribunalswithout entering into some technical details of theirconstitution and their forms of proceeding; and I know not how todescend to these minutiae without wearying the curiosity of thereader by the natural aridity of the subject, or without riskingto fall into obscurity through a desire to be succinct. I canscarcely hope to escape these various evils; for if I appear toolengthy to a man of the world, a lawyer may on the other handcomplain of my brevity. But these are the natural disadvantagesof my subject, and more especially of the point which I am aboutto discuss.

The great difficulty was, not to devise the Constitution tothe Federal Government, but to find out a method of enforcing itslaws. Governments have in general but two means of overcomingthe opposition of the people they govern, viz., the physicalforce which is at their own disposal, and the moral force whichthey derive from the decisions of the courts of justice.

A government which should have no other means of exactingobedience than open war must be very near its ruin, for one oftwo alternatives would then probably occur: if its authority wassmall and its character temperate, it would not resort toviolence till the last extremity, and it would connive at anumber of partial acts of insubordination, in which case theState would gradually fall into anarchy; if it was enterprisingand powerful, it would perpetually have recourse to its physicalstrength, and would speedily degenerate into a militarydespotism. So that its activity would not be less prejudicial tothe community than its inaction.

The great end of justice is to substitute the notion ofright for that of violence, and to place a legal barrier betweenthe power of the government and the use of physical force. Theauthority which is awarded to the intervention of a court ofjustice by the general opinion of mankind is so surprisinglygreat that it clings to the mere formalities of justice, andgives a bodily influence to the shadow of the law. The moralforce which courts of justice possess renders the introduction ofphysical force exceedingly rare, and is very frequentlysubstituted for it; but if the latter proves to be indispensable,its power is doubled by the association of the idea of law.

A federal government stands in greater need of the supportof judicial institutions than any other, because it is naturallyweak and exposed to formidable opposition. *c If it were alwaysobliged to resort to violence in the first instance, it could notfulfil its task. The Union, therefore, required a nationaljudiciary to enforce the obedience of the citizens to the laws,and to repeal the attacks which might be directed against them. The question then remained as to what tribunals were to exercisethese privileges; were they to be entrusted to the courts ofjustice which were already organized in every State? or was itnecessary to create federal courts? It may easily be proved thatthe Union could not adapt the judicial power of the States to itswants. The separation of the judiciary from the administrativepower of the State no doubt affects the security of every citizenand the liberty of all. But it is no less important to theexistence of the nation that these several powers should have thesame origin, should follow the same principles, and act in thesame sphere; in a word, that they should be correlative andhomogeneous. No one, I presume, ever suggested the advantage oftrying offences committed in France by a foreign court ofjustice, in order to secure the impartiality of the judges. TheAmericans form one people in relation to their FederalGovernment; but in the bosom of this people divers politicalbodies have been allowed to subsist which are dependent on thenational Government in a few points, and independent in all therest; which have all a distinct origin, maxims peculiar tothemselves, and special means of carrying on their affairs. Toentrust the execution of the laws of the Union to tribunalsinstituted by these political bodies would be to allow foreignjudges to preside over the nation. Nay, more; not only is eachState foreign to the Union at large, but it is in perpetualopposition to the common interests, since whatever authority theUnion loses turns to the advantage of the States. Thus toenforce the laws of the Union by means of the tribunals of theStates would be to allow not only foreign but partial judges topreside over the nation.

[Footnote c: Federal laws are those which most require courts ofjustice, and those at the same time which have most rarelyestablished them. The reason is that confederations have usuallybeen formed by independent States, which entertained no realintention of obeying the central Government, and which veryreadily ceded the right of command to the federal executive, andvery prudently reserved the right of non-compliance tothemselves.]

But the number, still more than the mere character, of thetribunals of the States rendered them unfit for the service ofthe nation. When the Federal Constitution was formed there werealready thirteen courts of justice in the United States whichdecided causes without appeal. That number is now increased totwenty-four. To suppose that a State can subsist when itsfundamental laws may be subjected to four-and-twenty differentinterpretations at the same time is to advance a propositionalike contrary to reason and to experience.

The American legislators therefore agreed to create afederal judiciary power to apply the laws of the Union, and todetermine certain questions affecting general interests, whichwere carefully determined beforehand. The entire judicial powerof the Union was centred in one tribunal, which was denominatedthe Supreme Court of the United States. But, to facilitate theexpedition of business, inferior courts were appended to it,which were empowered to decide causes of small importance withoutappeal, and with appeal causes of more magnitude. The members ofthe Supreme Court are named neither by the people nor thelegislature, but by the President of the United States, actingwith the advice of the Senate. In order to render themindependent of the other authorities, their office was madeinalienable; and it was determined that their salary, when oncefixed, should not be altered by the legislature. *d It was easyto proclaim the principle of a Federal judiciary, butdifficulties multiplied when the extent of its jurisdiction wasto be determined.

[Footnote d: The Union was divided into districts, in each ofwhich a resident Federal judge was appointed, and the court inwhich he presided was termed a "District Court." Each of thejudges of the Supreme Court annually visits a certain portion ofthe Republic, in order to try the most important causes upon thespot; the court presided over by this magistrate is styled a"Circuit Court." Lastly, all the most serious cases of litigationare brought before the Supreme Court, which holds a solemnsession once a year, at which all the judges of the CircuitCourts must attend. The jury was introduced into the FederalCourts in the same manner, and in the same cases, as into thecourts of the States.

It will be observed that no analogy exists between theSupreme Court of the United States and the French Cour deCassation, since the latter only hears appeals on questions oflaw. The Supreme Court decides upon the evidence of the fact aswell as upon the law of the case, whereas the Cour de Cassationdoes not pronounce a decision of its own, but refers the cause tothe arbitration of another tribunal. See the law of September24, 1789, "Laws of the United States," by Story, vol. i. p. 53.]

Means Of Determining The Jurisdiction Of The Federal Courts Difficulty of determining the jurisdiction of separate courts ofjustice in confederations - The courts of the Union obtained theright of fixing their own jurisdiction - In what respect thisrule attacks the portion of sovereignty reserved to the severalStates - The sovereignty of these States restricted by the laws,and the interpretation of the laws - Consequently, the danger ofthe several States is more apparent than real.

As the Constitution of the United States recognized twodistinct powers in presence of each other, represented in ajudicial point of view by two distinct classes of courts ofjustice, the utmost care which could be taken in defining theirseparate jurisdictions would have been insufficient to preventfrequent collisions between those tribunals. The question thenarose to whom the right of deciding the competency of each courtwas to be referred.

In nations which constitute a single body politic, when aquestion is debated between two courts relating to their mutualjurisdiction, a third tribunal is generally within reach todecide the difference; and this is effected without difficulty,because in these nations the questions of judicial competencyhave no connection with the privileges of the national supremacy. But it was impossible to create an arbiter between a superiorcourt of the Union and the superior court of a separate Statewhich would not belong to one of these two classes. It was,therefore, necessary to allow one of these courts to judge itsown cause, and to take or to retain cognizance of the point whichwas contested. To grant this privilege to the different courtsof the States would have been to destroy the sovereignty of theUnion de facto after having established it de jure; for theinterpretation of the Constitution would soon have restored thatportion of independence to the States of which the terms of thatact deprived them. The object of the creation of a Federaltribunal was to prevent the courts of the States from decidingquestions affecting the national interests in their owndepartment, and so to form a uniform body of jurisprudene for theinterpretation of the laws of the Union. This end would not havebeen accomplished if the courts of the several States had beencompetent to decide upon cases in their separate capacities fromwhich they were obliged to abstain as Federal tribunals. TheSupreme Court of the United States was therefore invested withthe right of determining all questions of jurisdiction. *e

[Footnote e: In order to diminish the number of these suits, itwas decided that in a great many Federal causes the courts of theStates should be empowered to decide conjointly with those of theUnion, the losing party having then a right of appeal to theSupreme Court of the United States. The Supreme Court ofVirginia contested the right of the Supreme Court of the UnitedStates to judge an appeal from its decisions, but unsuccessfully. See "Kent's Commentaries," vol. i. p. 300, pp. 370 et seq.;Story's "Commentaries," p. 646; and "The Organic Law of theUnited States," vol. i. p. 35.]

This was a severe blow upon the independence of the States,which was thus restricted not only by the laws, but by theinterpretation of them; by one limit which was known, and byanother which was dubious; by a rule which was certain, and arule which was arbitrary. It is true the Constitution had laiddown the precise limits of the Federal supremacy, but wheneverthis supremacy is contested by one of the States, a Federaltribunal decides the question. Nevertheless, the dangers withwhich the independence of the States was threatened by this modeof proceeding are less serious than they appeared to be. Weshall see hereafter that in America the real strength of thecountry is vested in the provincial far more than in the FederalGovernment. The Federal judges are conscious of the relativeweakness of the power in whose name they act, and they are moreinclined to abandon a right of jurisdiction in cases where it isjustly their own than to assert a privilege to which they have nolegal claim.

Different Cases Of Jurisdiction

The matter and the party are the first conditions of the Federaljurisdiction - Suits in which ambassadors are engaged - Suits ofthe Union - Of a separate State - By whom tried - Causesresulting from the laws of the Union - Why judged by the Federaltribunals - Causes relating to the performance of contracts triedby the Federal courts - Consequence of this arrangement.

After having appointed the means of fixing the competency ofthe Federal courts, the legislators of the Union defined thecases which should come within their jurisdiction. It wasestablished, on the one hand, that certain parties must always bebrought before the Federal courts, without any regard to thespecial nature of the cause; and, on the other, that certaincauses must always be brought before the same courts, without anyregard to the quality of the parties in the suit. Thesedistinctions were therefore admitted to be the basis of theFederal jurisdiction.

Ambassadors are the representatives of nations in a state ofamity with the Union, and whatever concerns these personagesconcerns in some degree the whole Union. When an ambassador is aparty in a suit, that suit affects the welfare of the nation, anda Federal tribunal is naturally called upon to decide it.

The Union itself may be invoked in legal proceedings, and inthis case it would be alike contrary to the customs of allnations and to common sense to appeal to a tribunal representingany other sovereignty than its own; the Federal courts,therefore, take cognizance of these affairs.

When two parties belonging to two different States areengaged in a suit, the case cannot with propriety be broughtbefore a court of either State. The surest expedient is toselect a tribunal like that of the Union, which can excite thesuspicions of neither party, and which offers the most natural aswell as the most certain remedy.

When the two parties are not private individuals, butStates, an important political consideration is added to the samemotive of equity. The quality of the parties in this case givesa national importance to all their disputes; and the mosttrifling litigation of the States may be said to involve thepeace of the whole Union. *f

[Footnote f: The Constitution also says that the Federal courtsshall decide "controversies between a State and the citizens ofanother State." And here a most important question of aconstitutional nature arose, which was, whether the jurisdictiongiven by the Constitution in cases in which a State is a partyextended to suits brought against a State as well as by it, orwas exclusively confined to the latter. The question was mostelaborately considered in the case of Chisholm v. Georgia, andwas decided by the majority of the Supreme Court in theaffirmative. The decision created general alarm among theStates, and an amendment was proposed and ratified by which thepower was entirely taken away, so far as it regards suits broughtagainst a State. See Story's "Commentaries," p. 624, or in thelarge edition Section 1677.]

The nature of the cause frequently prescribes the rule ofcompetency. Thus all the questions which concern maritimecommerce evidently fall under the cognizance of the Federaltribunals. *g Almost all these questions are connected with theinterpretation of the law of nations, and in this respect theyessentially interest the Union in relation to foreign powers. Moreover, as the sea is not included within the limits of anypeculiar jurisdiction, the national courts can only hear causeswhich originate in maritime affairs.

[Footnote g: As for instance, all cases of piracy.]

The Constitution comprises under one head almost all thecases which by their very nature come within the limits of theFederal courts. The rule which it lays down is simple, butpregnant with an entire system of ideas, and with a vastmultitude of facts. It declares that the judicial power of theSupreme Court shall extend to all cases in law and equity arisingunder the laws of the United States.

Two examples will put the intention of the legislator in theclearest light:

The Constitution prohibits the States from making laws onthe value and circulation of money: If, notwithstanding thisprohibition, a State passes a law of this kind, with which theinterested parties refuse to comply because it is contrary to theConstitution, the case must come before a Federal court, becauseit arises under the laws of the United States. Again, ifdifficulties arise in the levying of import duties which havebeen voted by Congress, the Federal court must decide the case,because it arises under the interpretation of a law of the UnitedStates.

This rule is in perfect accordance with the fundamentalprinciples of the Federal Constitution. The Union, as it wasestablished in 1789, possesses, it is true, a limited supremacy;but it was intended that within its limits it should form one andthe same people. *h Within those limits the Union is sovereign. When this point is established and admitted, the inference iseasy; for if it be acknowledged that the United States constituteone and the same people within the bounds prescribed by theirConstitution, it is impossible to refuse them the rights whichbelong to other nations. But it has been allowed, from theorigin of society, that every nation has the right of deciding byits own courts those questions which concern the execution of itsown laws. To this it is answered that the Union is in sosingular a position that in relation to some matters itconstitutes a people, and that in relation to all the rest it isa nonentity. But the inference to be drawn is, that in the lawsrelating to these matters the Union possesses all the rights ofabsolute sovereignty. The difficulty is to know what thesematters are; and when once it is resolved (and we have shown howit was resolved, in speaking of the means of determining thejurisdiction of the Federal courts) no further doubt can arise;for as soon as it is established that a suit is Federal - that isto say, that it belongs to the share of sovereignty reserved bythe Constitution of the Union - the natural consequence is thatit should come within the jurisdiction of a Federal court.

[Footnote h: This principle was in some measure restricted by theintroduction of the several States as independent powers into theSenate, and by allowing them to vote separately in the House ofRepresentatives when the President is elected by that body. Butthese are exceptions, and the contrary principle is the rule.]

Whenever the laws of the United States are attacked, orwhenever they are resorted to in self-defence, the Federal courtsmust be appealed to. Thus the jurisdiction of the tribunals ofthe Union extends and narrows its limits exactly in the sameratio as the sovereignty of the Union augments or decreases. Wehave shown that the principal aim of the legislators of 1789 wasto divide the sovereign authority into two parts. In the onethey placed the control of all the general interests of theUnion, in the other the control of the special interests of itscomponent States. Their chief solicitude was to arm the FederalGovernment with sufficient power to enable it to resist, withinits sphere, the encroachments of the several States. As for thesecommunities, the principle of independence within certain limitsof their own was adopted in their behalf; and they were concealedfrom the inspection, and protected from the control, of thecentral Government. In speaking of the division of authority, Iobserved that this latter principle had not always been heldsacred, since the States are prevented from passing certain lawswhich apparently belong to their own particular sphere ofinterest. When a State of the Union passes a law of this kind,the citizens who are injured by its execution can appeal to theFederal courts.

Thus the jurisdiction of the Federal courts extends not onlyto all the cases which arise under the laws of the Union, butalso to those which arise under laws made by the several Statesin opposition to the Constitution. The States are prohibitedfrom making ex post facto laws in criminal cases, and any personcondemned by virtue of a law of this kind can appeal to thejudicial power of the Union. The States are likewise prohibitedfrom making laws which may have a tendency to impair theobligations of contracts. *i If a citizen thinks that anobligation of this kind is impaired by a law passed in his State,he may refuse to obey it, and may appeal to the Federal courts.*j

[Footnote i: It is perfectly clear, says Mr. Story("Commentaries," p. 503, or in the large edition Section 1379),that any law which enlarges, abridges, or in any manner changesthe intention of the parties, resulting from the stipulations inthe contract, necessarily impairs it. He gives in the same placea very long and careful definition of what is understood by acontract in Federal jurisprudence. A grant made by the State toa private individual, and accepted by him, is a contract, andcannot be revoked by any future law. A charter granted by theState to a company is a contract, and equally binding to theState as to the grantee. The clause of the Constitution herereferred to insures, therefore, the existence of a great part ofacquired rights, but not of all. Property may legally be held,though it may not have passed into the possessor's hands by meansof a contract; and its possession is an acquired right, notguaranteed by the Federal Constitution.]

[Footnote j: A remarkable instance of this is given by Mr. Story(p. 508, or in the large edition Section 1388): "DartmouthCollege in New Hampshire had been founded by a charter granted tocertain individuals before the American Revolution, and itstrustees formed a corporation under this charter. Thelegislature of New Hampshire had, without the consent of thiscorporation, passed an act changing the organization of theoriginal provincial charter of the college, and transferring allthe rights, privileges, and franchises from the old chartertrustees to new trustees appointed under the act. Theconstitutionality of the act was contested, and, after solemnarguments, it was deliberately held by the Supreme Court that theprovincial charter was a contract within the meaning of theConstitution (Art. I. Section 10), and that the emendatory actwas utterly void, as impairing the obligation of that charter. The college was deemed, like other colleges of privatefoundation, to be a private eleemosynary institution, endowed byits charter with a capacity to take property unconnected with theGovernment. Its funds were bestowed upon the faith of thecharter, and those funds consisted entirely of private donations. It is true that the uses were in some sense public, that is, forthe general benefit, and not for the mere benefit of thecorporators; but this did not make the corporation a publiccorporation. It was a private institution for general charity. It was not distinguishable in principle from a private donation,vested in private trustees, for a public charity, or for aparticular purpose of beneficence. And the State itself, if ithad bestowed funds upon a charity of the same nature, could notresume those funds."]

This provision appears to me to be the most serious attackupon the independence of the States. The rights awarded to theFederal Government for purposes of obvious national importanceare definite and easily comprehensible; but those with which thislast clause invests it are not either clearly appreciable oraccurately defined. For there are vast numbers of political lawswhich influence the existence of obligations of contracts, whichmay thus furnish an easy pretext for the aggressions of thecentral authority.

Chapter VIII: The Federal Constitution - Part IV

Procedure Of The Federal Courts

Natural weakness of the judiciary power in confederations -Legislators ought to strive as much as possible to bring privateindividuals, and not States, before the Federal Courts - How theAmericans have succeeded in this - Direct prosecution of privateindividuals in the Federal Courts - Indirect prosecution of theStates which violate the laws of the Union - The decrees of theSupreme Court enervate but do not destroy the provincial laws.

I have shown what the privileges of the Federal courts are,and it is no less important to point out the manner in which theyare exercised. The irresistible authority of justice incountries in which the sovereignty in undivided is derived fromthe fact that the tribunals of those countries represent theentire nation at issue with the individual against whom theirdecree is directed, and the idea of power is thus introduced tocorroborate the idea of right. But this is not always the casein countries in which the sovereignty is divided; in them thejudicial power is more frequently opposed to a fraction of thenation than to an isolated individual, and its moral authorityand physical strength are consequently diminished. In federalStates the power of the judge is naturally decreased, and that ofthe justiciable parties is augmented. The aim of the legislatorin confederate States ought therefore to be to render theposition of the courts of justice analogous to that which theyoccupy in countries where the sovereignty is undivided; in otherwords, his efforts ought constantly to tend to maintain thejudicial power of the confederation as the representative of thenation, and the justiciable party as the representative of anindividual interest.

Every government, whatever may be its constitution, requiresthe means of constraining its subjects to discharge theirobligations, and of protecting its privileges from theirassaults. As far as the direct action of the Government on thecommunity is concerned, the Constitution of the United Statescontrived, by a master-stroke of policy, that the federal courts,acting in the name of the laws, should only take cognizance ofparties in an individual capacity. For, as it had been declaredthat the Union consisted of one and the same people within thelimits laid down by the Constitution, the inference was that theGovernment created by this Constitution, and acting within theselimits, was invested with all the privileges of a nationalgovernment, one of the principal of which is the right oftransmitting its injunctions directly to the private citizen. When, for instance, the Union votes an impost, it does not applyto the States for the levying of it, but to every Americancitizen in proportion to his assessment. The Supreme Court,which is empowered to enforce the execution of this law of theUnion, exerts its influence not upon a refractory State, but uponthe private taxpayer; and, like the judicial power of othernations, it is opposed to the person of an individual. It is tobe observed that the Union chose its own antagonist; and as thatantagonist is feeble, he is naturally worsted.

But the difficulty increases when the proceedings are notbrought forward by but against the Union. The Constitutionrecognizes the legislative power of the States; and a law soenacted may impair the privileges of the Union, in which case acollision in unavoidable between that body and the State whichhas passed the law: and it only remains to select the leastdangerous remedy, which is very clearly deducible from thegeneral principles I have before established. *k

[Footnote k: See Chapter VI. on "Judicial Power in America."]

It may be conceived that, in the case under consideration,the Union might have used the State before a Federal court, whichwould have annulled the act, and by this means it would haveadopted a natural course of proceeding; but the judicial powerwould have been placed in open hostility to the State, and it wasdesirable to avoid this predicament as much as possible. TheAmericans hold that it is nearly impossible that a new law shouldnot impair the interests of some private individual by itsprovisions: these private interests are assumed by the Americanlegislators as the ground of attack against such measures as maybe prejudicial to the Union, and it is to these cases that theprotection of the Supreme Court is extended.

Suppose a State vends a certain portion of its territory toa company, and that a year afterwards it passes a law by whichthe territory is otherwise disposed of, and that clause of theConstitution which prohibits laws impairing the obligation ofcontracts violated. When the purchaser under the second actappears to take possession, the possessor under the first actbrings his action before the tribunals of the Union, and causesthe title of the claimant to be pronounced null and void. *lThus, in point of fact, the judicial power of the Union iscontesting the claims of the sovereignty of a State; but it onlyacts indirectly and upon a special application of detail: itattacks the law in its consequences, not in its principle, and itrather weakens than destroys it.

[Footnote l: See Kent's "Commentaries," vol. i. p. 387.]

The last hypothesis that remained was that each State formeda corporation enjoying a separate existence and distinct civilrights, and that it could therefore sue or be sued before atribunal. Thus a State could bring an action against anotherState. In this instance the Union was not called upon to contesta provincial law, but to try a suit in which a State was a party. This suit was perfectly similar to any other cause, except thatthe quality of the parties was different; and here the dangerpointed out at the beginning of this chapter exists with lesschance of being avoided. The inherent disadvantage of the veryessence of Federal constitutions is that they engender parties inthe bosom of the nation which present powerful obstacles to thefree course of justice.

High Rank Of The Supreme Court Amongst The Great Powers Of State No nation ever constituted so great a judicial power as theAmericans - Extent of its prerogative - Its political influence -The tranquillity and the very existence of the Union depend onthe discretion of the seven Federal Judges.

When we have successively examined in detail theorganization of the Supreme Court, and the entire prerogativeswhich it exercises, we shall readily admit that a more imposingjudicial power was never constituted by any people. The SupremeCourt is placed at the head of all known tribunals, both by thenature of its rights and the class of justiciable parties whichit controls.

In all the civilized countries of Europe the Government hasalways shown the greatest repugnance to allow the cases to whichit was itself a party to be decided by the ordinary course ofjustice. This repugnance naturally attains its utmost height inan absolute Government; and, on the other hand, the privileges ofthe courts of justice are extended with the increasing libertiesof the people: but no European nation has at present held thatall judicial controversies, without regard to their origin, canbe decided by the judges of common law.

In America this theory has been actually put in practice,and the Supreme Court of the United States is the sole tribunalof the nation. Its power extends to all the cases arising underlaws and treaties made by the executive and legislativeauthorities, to all cases of admiralty and maritime jurisdiction,and in general to all points which affect the law of nations. Itmay even be affirmed that, although its constitution isessentially judicial, its prerogatives are almost entirelypolitical. Its sole object is to enforce the execution of thelaws of the Union; and the Union only regulates the relations ofthe Government with the citizens, and of the nation with ForeignPowers: the relations of citizens amongst themselves are almostexclusively regulated by the sovereignty of the States.

A second and still greater cause of the preponderance ofthis court may be adduced. In the nations of Europe the courtsof justice are only called upon to try the controversies ofprivate individuals; but the Supreme Court of the United Statessummons sovereign powers to its bar. When the clerk of the courtadvances on the steps of the tribunal, and simply says, "TheState of New York versus the State of Ohio," it is impossible notto feel that the Court which he addresses is no ordinary body;and when it is recollected that one of these parties representsone million, and the other two millions of men, one is struck bythe responsibility of the seven judges whose decision is about tosatisfy or to disappoint so large a number of theirfellow-citizens.

The peace, the prosperity, and the very existence of theUnion are vested in the hands of the seven judges. Without theiractive co-operation the Constitution would be a dead letter: theExecutive appeals to them for assistance against theencroachments of the legislative powers; the Legislature demandstheir protection from the designs of the Executive; they defendthe Union from the disobedience of the States, the States fromthe exaggerated claims of the Union, the public interest againstthe interests of private citizens, and the conservative spirit oforder against the fleeting innovations of democracy. Their poweris enormous, but it is clothed in the authority of publicopinion. They are the all- powerful guardians of a people whichrespects law, but they would be impotent against popular neglector popular contempt. The force of public opinion is the mostintractable of agents, because its exact limits cannot bedefined; and it is not less dangerous to exceed than to remainbelow the boundary prescribed.

The Federal judges must not only be good citizens, and menpossessed of that information and integrity which areindispensable to magistrates, but they must be statesmen -politicians, not unread in the signs of the times, not afraid tobrave the obstacles which can be subdued, nor slow to turn asidesuch encroaching elements as may threaten the supremacy of theUnion and the obedience which is due to the laws.

The President, who exercises a limited power, may errwithout causing great mischief in the State. Congress may decideamiss without destroying the Union, because the electoral body inwhich Congress originates may cause it to retract its decision bychanging its members. But if the Supreme Court is ever composedof imprudent men or bad citizens, the Union may be plunged intoanarchy or civil war.

The real cause of this danger, however, does not lie in theconstitution of the tribunal, but in the very nature of FederalGovernments. We have observed that in confederate peoples it isespecially necessary to consolidate the judicial authority,because in no other nations do those independent persons who areable to cope with the social body exist in greater power or in abetter condition to resist the physical strength of theGovernment. But the more a power requires to be strengthened,the more extensive and independent it must be made; and thedangers which its abuse may create are heightened by itsindependence and its strength. The source of the evil is not,therefore, in the constitution of the power, but in theconstitution of those States which render its existencenecessary.

In What Respects The Federal Constitution Is Superior To That OfThe States

In what respects the Constitution of the Union can be compared tothat of the States - Superiority of the Constitution of the Unionattributable to the wisdom of the Federal legislators -Legislature of the Union less dependent on the people than thatof the States - Executive power more independent in its sphere -Judicial power less subjected to the inclinations of the majority-Practical consequence of these facts - The dangers inherent in ademocratic government eluded by the Federal legislators, andincreased by the legislators of the States.

The Federal Constitution differs essentially from that ofthe States in the ends which it is intended to accomplish, but inthe means by which these ends are promoted a greater analogyexists between them. The objects of the Governments aredifferent, but their forms are the same; and in this specialpoint of view there is some advantage in comparing them together.

I am of opinion that the Federal Constitution is superior toall the Constitutions of the States, for several reasons.

The present Constitution of the Union was formed at a laterperiod than those of the majority of the States, and it may havederived some ameliorations from past experience. But we shall beled to acknowledge that this is only a secondary cause of itssuperiority, when we recollect that eleven new States *n havebeen added to the American Confederation since the promulgationof the Federal Constitution, and that these new republics havealways rather exaggerated than avoided the defects which existedin the former Constitutions.

[Footnote n: [The number of States has now risen to 46 (1874),besides the District of Columbia.]]

The chief cause of the superiority of the FederalConstitution lay in the character of the legislators who composedit. At the time when it was formed the dangers of theConfederation were imminent, and its ruin seemed inevitable. Inthis extremity the people chose the men who most deserved theesteem, rather than those who had gained the affections, of thecountry. I have already observed that distinguished as almostall the legislators of the Union were for their intelligence,they were still more so for their patriotism. They had all beennurtured at a time when the spirit of liberty was braced by acontinual struggle against a powerful and predominant authority. When the contest was terminated, whilst the excited passions ofthe populace persisted in warring with dangers which had ceasedto threaten them, these men stopped short in their career; theycast a calmer and more penetrating look upon the country whichwas now their own; they perceived that the war of independencewas definitely ended, and that the only dangers which America hadto fear were those which might result from the abuse of thefreedom she had won. They had the courage to say what theybelieved to be true, because they were animated by a warm andsincere love of liberty; and they ventured to proposerestrictions, because they were resolutely opposed todestruction. *o

[Footnote o: At this time Alexander Hamilton, who was one of theprincipal founders of the Constitution, ventured to express thefollowing sentiments in "The Federalist," No. 71: -

"There are some who would be inclined to regard the servilepliancy of the Executive to a prevailing current, either in thecommunity or in the Legislature, as its best recommendation. Butsuch men entertain very crude notions, as well of the purposesfor which government was instituted as of the true means by whichthe public happiness may be promoted. The Republican principledemands that the deliberative sense of the community shouldgovern the conduct of those to whom they entrust the managementof their affairs; but it does not require an unqualifiedcomplaisance to every sudden breeze of passion, or to everytransient impulse which the people may receive from the arts ofmen who flatter their prejudices to betray their interests. Itis a just observation, that the people commonly intend the publicgood. This often applies to their very errors. But their goodsense would despise the adulator who should pretend that theyalways reason right about the means of promoting it. They knowfrom experience that they sometimes err; and the wonder is thatthey so seldom err as they do, beset, as they continually are, bythe wiles of parasites and sycophants; by the snares of theambitious, the avaricious, the desperate; by the artifices of menwho possess their confidence more than they deserve it, and ofthose who seek to possess rather than to deserve it. Whenoccasions present themselves in which the interests of the peopleare at variance with their inclinations, it is the duty ofpersons whom they have appointed to be the guardians of thoseinterests to withstand the temporary delusion, in order to givethem time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind hassaved the people from very fatal consequences of their ownmistakes, and has procured lasting monuments of their gratitudeto the men who had courage and magnanimity enough to serve themat the peril of their displeasure."]

The greater number of the Constitutions of the States assignone year for the duration of the House of Representatives, andtwo years for that of the Senate; so that members of thelegislative body are constantly and narrowly tied down by theslightest desires of their constituents. The legislators of theUnion were of opinion that this excessive dependence of theLegislature tended to alter the nature of the main consequencesof the representative system, since it vested the source, notonly of authority, but of government, in the people. Theyincreased the length of the time for which the representativeswere returned, in order to give them freer scope for the exerciseof their own judgment.

The Federal Constitution, as well as the Constitutions ofthe different States, divided the legislative body into twobranches. But in the States these two branches were composed ofthe same elements, and elected in the same manner. Theconsequence was that the passions and inclinations of thepopulace were as rapidly and as energetically represented in onechamber as in the other, and that laws were made with all thecharacteristics of violence and precipitation. By the FederalConstitution the two houses originate in like manner in thechoice of the people; but the conditions of eligibility and themode of election were changed, to the end that, if, as is thecase in certain nations, one branch of the Legislature representsthe same interests as the other, it may at least represent asuperior degree of intelligence and discretion. A mature age wasmade one of the conditions of the senatorial dignity, and theUpper House was chosen by an elected assembly of a limited numberof members.

To concentrate the whole social force in the hands of thelegislative body is the natural tendency of democracies; for asthis is the power which emanates the most directly from thepeople, it is made to participate most fully in thepreponderating authority of the multitude, and it is naturallyled to monopolize every species of influence. This concentrationis at once prejudicial to a well-conducted administration, andfavorable to the despotism of the majority. The legislators ofthe States frequently yielded to these democratic propensities,which were invariably and courageously resisted by the foundersof the Union.

In the States the executive power is vested in the hands ofa magistrate, who is apparently placed upon a level with theLegislature, but who is in reality nothing more than the blindagent and the passive instrument of its decisions. He can deriveno influence from the duration of his functions, which terminatewith the revolving year, or from the exercise of prerogativeswhich can scarcely be said to exist. The Legislature can condemnhim to inaction by intrusting the execution of the laws tospecial committees of its own members, and can annul histemporary dignity by depriving him of his salary. The FederalConstitution vests all the privileges and all the responsibilityof the executive power in a single individual. The duration ofthe Presidency is fixed at four years; the salary of theindividual who fills that office cannot be altered during theterm of his functions; he is protected by a body of officialdependents, and armed with a suspensive veto. In short, everyeffort was made to confer a strong and independent position uponthe executive authority within the limits which had beenprescribed to it.

In the Constitutions of all the States the judicial power isthat which remains the most independent of the legislativeauthority; nevertheless, in all the States the Legislature hasreserved to itself the right of regulating the emoluments of thejudges, a practice which necessarily subjects these magistratesto its immediate influence. In some States the judges are onlytemporarily appointed, which deprives them of a great portion oftheir power and their freedom. In others the legislative andjudicial powers are entirely confounded; thus the Senate of NewYork, for instance, constitutes in certain cases the SuperiorCourt of the State. The Federal Constitution, on the other hand,carefully separates the judicial authority from all externalinfluences; and it provides for the independence of the judges,by declaring that their salary shall not be altered, and thattheir functions shall be inalienable.

The practical consequences of these different systems mayeasily be perceived. An attentive observer will soon remark thatthe business of the Union is incomparably better conducted thanthat of any individual State. The conduct of the FederalGovernment is more fair and more temperate than that of theStates, its designs are more fraught with wisdom, its projectsare more durable and more skilfully combined, its measures areput into execution with more vigor and consistency.

I recapitulate the substance of this chapter in a few words:The existence of democracies is threatened by two dangers, viz.,the complete subjection of the legislative body to the capricesof the electoral body, and the concentration of all the powers ofthe Government in the legislative authority. The growth of theseevils has been encouraged by the policy of the legislators of theStates, but it has been resisted by the legislators of the Unionby every means which lay within their control.

Characteristics Which Distinguish The Federal Constitution Of TheUnited States Of America From All Other Federal Constitutions American Union appears to resemble all other confederations -Nevertheless its effects are different - Reason of this -Distinctions between the Union and all other confederations - TheAmerican Government not a federal but an imperfect nationalGovernment.

The United States of America do not afford either the firstor the only instance of confederate States, several of which haveexisted in modern Europe, without adverting to those ofantiquity. Switzerland, the Germanic Empire, and the Republic ofthe United Provinces either have been or still areconfederations. In studying the constitutions of these differentcountries, the politician is surprised to observe that the powerswith which they invested the Federal Government are nearlyidentical with the privileges awarded by the AmericanConstitution to the Government of the United States. They conferupon the central power the same rights of making peace and war,of raising money and troops, and of providing for the generalexigencies and the common interests of the nation. Neverthelessthe Federal Government of these different peoples has always beenas remarkable for its weakness and inefficiency as that of theUnion is for its vigorous and enterprising spirit. Again, thefirst American Confederation perished through the excessiveweakness of its Government; and this weak Government was,notwithstanding, in possession of rights even more extensive thanthose of the Federal Government of the present day. But the morerecent Constitution of the United States contains certainprinciples which exercise a most important influence, althoughthey do not at once strike the observer.

This Constitution, which may at first sight be confoundedwith the federal constitutions which preceded it, rests upon anovel theory, which may be considered as a great invention inmodern political science. In all the confederations which hadbeen formed before the American Constitution of 1789 the alliedStates agreed to obey the injunctions of a Federal Government;but they reserved to themselves the right of ordaining andenforcing the execution of the laws of the Union. The AmericanStates which combined in 1789 agreed that the Federal Governmentshould not only dictate the laws, but that it should execute itown enactments. In both cases the right is the same, but theexercise of the right is different; and this alteration producedthe most momentous consequences.

In all the confederations which had been formed before theAmerican Union the Federal Government demanded its supplies atthe hands of the separate Governments; and if the measure itprescribed was onerous to any one of those bodies means werefound to evade its claims: if the State was powerful, it hadrecourse to arms; if it was weak, it connived at the resistancewhich the law of the Union, its sovereign, met with, and resortedto inaction under the plea of inability. Under thesecircumstances one of the two alternatives has invariablyoccurred; either the most preponderant of the allied peoples hasassumed the privileges of the Federal authority and ruled all theStates in its name, *p or the Federal Government has beenabandoned by its natural supporters, anarchy has arisen betweenthe confederates, and the Union has lost all powers of action. *q

[Footnote p: This was the case in Greece, when Philip undertookto execute the decree of the Amphictyons; in the Low Countries,where the province of Holland always gave the law; and, in ourown time, in the Germanic Confederation, in which Austria andPrussia assume a great degree of influence over the wholecountry, in the name of the Diet.]

[Footnote q: Such has always been the situation of the SwissConfederation, which would have perished ages ago but for themutual jealousies of its neighbors.]

In America the subjects of the Union are not States, butprivate citizens: the national Government levies a tax, not uponthe State of Massachusetts, but upon each inhabitant ofMassachusetts. All former confederate governments presided overcommunities, but that of the Union rules individuals; its forceis not borrowed, but self-derived; and it is served by its owncivil and military officers, by its own army, and its own courtsof justice. It cannot be doubted that the spirit of the nation,the passions of the multitude, and the provincial prejudices ofeach State tend singularly to diminish the authority of a Federalauthority thus constituted, and to facilitate the means ofresistance to its mandates; but the comparative weakness of arestricted sovereignty is an evil inherent in the Federal system. In America, each State has fewer opportunities of resistance andfewer temptations to non-compliance; nor can such a design be putin execution (if indeed it be entertained) without an openviolation of the laws of the Union, a direct interruption of theordinary course of justice, and a bold declaration of revolt; ina word, without taking a decisive step which men hesitate toadopt.

In all former confederations the privileges of the Unionfurnished more elements of discord than of power, since theymultiplied the claims of the nation without augmenting the meansof enforcing them: and in accordance with this fact it may beremarked that the real weakness of federal governments has almostalways been in the exact ratio of their nominal power. Such isnot the case in the American Union, in which, as in ordinarygovernments, the Federal Government has the means of enforcingall it is empowered to demand.

The human understanding more easily invents new things thannew words, and we are thence constrained to employ a multitude ofimproper and inadequate expressions. When several nations form apermanent league and establish a supreme authority, which,although it has not the same influence over the members of thecommunity as a national government, acts upon each of theConfederate States in a body, this Government, which is soessentially different from all others, is denominated a Federalone. Another form of society is afterwards discovered, in whichseveral peoples are fused into one and the same nation withregard to certain common interests, although they remaindistinct, or at least only confederate, with regard to all theirother concerns. In this case the central power acts directlyupon those whom it governs, whom it rules, and whom it judges, inthe same manner, as, but in a more limited circle than, anational government. Here the term Federal Government is clearlyno longer applicable to a state of things which must be styled anincomplete national Government: a form of government has beenfound out which is neither exactly national nor federal; but nofurther progress has been made, and the new word which will oneday designate this novel invention does not yet exist.

The absence of this new species of confederation has beenthe cause which has brought all Unions to Civil War, tosubjection, or to a stagnant apathy, and the peoples which formedthese leagues have been either too dull to discern, or toopusillanimous to apply this great remedy. The AmericanConfederation perished by the same defects.

But the Confederate States of America had been longaccustomed to form a portion of one empire before they had wontheir independence; they had not contracted the habit ofgoverning themselves, and their national prejudices had not takendeep root in their minds. Superior to the rest of the world inpolitical knowledge, and sharing that knowledge equally amongstthemselves, they were little agitated by the passions whichgenerally oppose the extension of federal authority in a nation,and those passions were checked by the wisdom of the chiefcitizens. The Americans applied the remedy with prudent firmnessas soon as they were conscious of the evil; they amended theirlaws, and they saved their country.

Chapter VIII: The Federal Constitution - Part V

Advantages Of The Federal System In General, And Its SpecialUtility In America

Happiness and freedom of small nations - Power of great nations -Great empires favorable to the growth of civilization - Strengthoften the first element of national prosperity - Aim of theFederal system to unite the twofold advantages resulting from asmall and from a large territory -Advantages derived by theUnited States from this system - The law adapts itself to theexigencies of the population; population does not conform to theexigencies of the law - Activity, amelioration, love andenjoyment of freedom in the American communities - Public spiritof the Union the abstract of provincial patriotism - Principlesand things circulate freely over the territory of the UnitedStates - The Union is happy and free as a little nation, andrespected as a great empire.

In small nations the scrutiny of society penetrates intoevery part, and the spirit of improvement enters into the mosttrifling details; as the ambition of the people is necessarilychecked by its weakness, all the efforts and resources of thecitizens are turned to the internal benefit of the community, andare not likely to evaporate in the fleeting breath of glory. Thedesires of every individual are limited, because extraordinaryfaculties are rarely to be met with. The gifts of an equalfortune render the various conditions of life uniform, and themanners of the inhabitants are orderly and simple. Thus, if oneestimate the gradations of popular morality and enlightenment, weshall generally find that in small nations there are more personsin easy circumstances, a more numerous population, and a moretranquil state of society, than in great empires.

When tyranny is established in the bosom of a small nation,it is more galling than elsewhere, because, as it acts within anarrow circle, every point of that circle is subject to itsdirect influence. It supplies the place of those great designswhich it cannot entertain by a violent or an exasperatinginterference in a multitude of minute details; and it leaves thepolitical world, to which it properly belongs, to meddle with thearrangements of domestic life. Tastes as well as actions are tobe regulated at its pleasure; and the families of the citizens aswell as the affairs of the State are to be governed by itsdecisions. This invasion of rights occurs, however, but seldom,and freedom is in truth the natural state of small communities.The temptations which the Government offers to ambition are tooweak, and the resources of private individuals are too slender,for the sovereign power easily to fall within the grasp of asingle citizen; and should such an event have occurred, thesubjects of the State can without difficulty overthrow the tyrantand his oppression by asimultaneous effort.